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Anthony J. Aliucci v. United States of America

February 11, 2011

ANTHONY J. ALIUCCI, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Nora Barry Fischer United States District Judge

MEMORANDUM OPINION

I. INTRODUCTION

This matter is before the Court on a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 filed by pro se Petitioner Anthony J. Aliucci. (Docket No. 57). Petitioner claims that his sentence should be vacated based on the Supreme Court‟s decision in Skilling v. United States, 130 S.Ct. 2896 (2010), which he alleges constitutes an intervening change in the law relating to the "honest-services" theory of prosecution under 18 U.S.C. § 1341. (Id.). The Government has opposed Petitioner‟s motion, arguing that the violation of 18 U.S.C. § 1341 to which Petitioner pled guilty was not based on an "honest-services" theory and was, instead, based on Petitioner‟s use of false and fraudulent pretenses, representations, and promises to defraud certain victims of money. (Docket No. 61). Petitioner‟s motion is now fully briefed and ripe for disposition. (Docket Nos. 57, 61, 63, 65, 68). Upon consideration of the parties‟ submissions, and for the following reasons, Petitioner‟s Motion [57] is DENIED.

II. BACKGROUND

On February 6, 2008, a federal grand jury in the Western District of Pennsylvania returned a three-count indictment against Petitioner, charging him with three counts of mail fraud, in violation of 18 U.S.C. § 1341.*fn1 (Docket No. 1). In brief, the indictment alleged that Petitioner knowingly devised a scheme to defraud Global Nursing Solutions, Inc. ("Global") of approximately $1 million by materially false or fraudulent pretenses, representations, or promises. (Id. at 2). As part of this scheme, Petitioner, while working for Global pursuant to a mutual services agreement, was accused of representing to Global that Nurses Network International ("NNI") had provided various services to Global, when, in fact, NNI had not. (Id. at 3). Based on Petitioner‟s misrepresentations, it was alleged that Global paid money to NNI. (Id.). Specifically, for each count of mail fraud, the indictment alleged that on a particular date, Petitioner caused a check to be deposited with the commercial interstate carriers, Federal Express and Worldwide Express, so that said check would be delivered to NNI based upon Petitioner‟s false and fraudulent representations.*fn2 (Id. at 4-5).

Thereafter, on November 26, 2008, Petitioner pled guilty to Count One of the indictment, pursuant to a written plea agreement with the Government. (Docket Nos. 42, 43, 46). At the time of his plea, Petitioner was 39 years old and had attained a bachelor‟s degree in business management. (Docket No. 46 at 3-4). He had no difficulty communicating with his attorney or the Court. (Id. at 4). He averred that he was not under the influence of drugs or alcohol nor was he under the care of a physician, therapist, psychologist or psychiatrist. (Id.). Petitioner stated that he fully understood the proceedings; his counsel opined that Petitioner was competent to plead; and the Court found that Petitioner was competent to meaningfully participate in the proceeding based on his response to the Court‟s questions and his demeanor in the courtroom. (Id. at 5). In this Court‟s estimation, Petitioner is a sophisticated individual, who clearly had the mental capacity and ability to understand the nature and circumstances of the proceedings and the consequences of his guilty plea.

At the plea hearing, the Court examined Petitioner concerning the count to which he intended to plead guilty:

The Court: Now, [Petitioner], do you understand that you are charged at Count 1 and may plead guilty to the crime of frauds and swindles commonly known as mail fraud in violation of Title 18, United States Code, Section 1341? Do you understand that, sir?

Petitioner: Yes, Your Honor.

The Court: And specifically, sir, do you understand that at Count 1 you are charged with knowingly devising a scheme to defraud or to obtain money, property, or the intangible right of honest services by materially false or fraudulent pretenses, representations or promises, and in attempting to do so deposited and caused to be deposited Check No. 1232 for $100,000 on August 5, 2005, with the commercial interstate carrier Federal Express? Do you understand that, sir?

Petitioner: Yes, Your Honor.

The Court: Do you understand the nature of this charge, sir?

Petitioner: Yes, Your Honor.

The Court: Do you have any questions about the charge at this time?

Petitioner: No, not at this time, Your Honor. (Docket No. 46 at 6-7). Later during the hearing, the Assistant United States Attorney summarized the nature of the scheme and Petitioner‟s involvement as follows:

The . final aspect of the scheme involved [Petitioner‟s] false representations to Global that a company in North Carolina known as NNI had provided services to Global when, in fact, NNI had not-or at least had not provided all the services that were represented by [Petitioner].

Based on these representations, Global paid several hundred thousand dollars to NNI in North Carolina. After Global finally became suspicious regarding the payments to NNI, Global contacted NNI, at which point Global learned [Petitioner] owed money to NNI. The monies paid by Global was (sic) credited to [Petitioner] in connection with his own business.

On August 5th of 2005, as a result of information submitted by [Petitioner] to Global regarding money being owed to NNI in North Carolina, Global sent the check described in Count 1 to NNI in North Carolina in the amount of $100,000. (Id. at 30-31). After listening to said description, Petitioner stated his agreement with the Government‟s summary and further stated that he had no additions or corrections to make. (Id. at 31). Petitioner‟s counsel echoed this latter sentiment. (Id.).

In his plea agreement, Petitioner "waive[d] the right to take a direct appeal from his conviction or sentence" and "waive[d] the right to file a motion to vacate sentence, under 28 U.S.C. § 2255, attacking his conviction or sentence, and the right to file any other collateral proceeding attacking his conviction or sentence."*fn3 (Docket No. 42 at 2-3). The agreement also contained a paragraph wherein Petitioner averred that he had read and discussed the plea agreement with his attorney.*fn4 (Id. at 4-5).

During the plea hearing, Petitioner stated that he had read and understood the terms and conditions of his plea agreement and that he agreed with all of the terms therein. (Docket No. 46 at 13-18). Petitioner also acknowledged his signature on the agreement‟s final page. (Id. at 14). The Court then examined Petitioner concerning the waiver provisions contained in the plea agreement:

The Court: [Petitioner], do you understand that generally you or the Government would have the right to appeal any sentence that this Court could impose, but you have entered into a plea agreement under which you have waived some or all of your appeal rights, including the right to take a direct appeal under Title 28, United States Code, Section 1291 or Title 18, United States Code, Section 3742 subject to the exceptions that were spelled out in the plea agreement? Do you understand that sir?

Petitioner: Yes, Your Honor.

The Court: Further, do you understand that pursuant to the plea agreement you have waived your right to file a motion to vacate sentence under Title 28, United States Code, Section 2255 and the right to file any ...


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